It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg

May 8, 2014

With the Supreme Court’s term speeding toward an end, court-watchers are deep into the annual spring rite of offering unsolicited retirement advice to aging justices. Constitutional scholar Erwin Chemerinsky spoke for many progressive observers recently, when he urged 81-year-old Justice Ruth Bader Ginsburg to resign “this summer,” before the November elections, because, at this juncture, “President Obama can have virtually anyone he wants confirmed for the Supreme Court.” Others, like law professor Garrett Epps, insist that Ginsburg has a right to stay, noting that if she “had followed the advice from male law professors like me, she would probably not be where she is today.”

This debate, however engrossing, is beside the point. The real question is, if Justice Ginsburg surprises critics by stepping down—either before the November 2014 elections or, win or lose this November, sometime before the end of President Obama’s term—could Democrats even get a replacement confirmed?

To wage any such fight, Democratic leaders would open the same playbook that both Presidents Obama and Clinton deployed to put the current four progressive justices on the Court: nominate a professionally strong, credibly moderate nominee; message his or her individual credentials and personal life story; and then hope that Senate Republicans choose to humor their base with ritual blasts at “liberal judicial activism,” but not filibuster or otherwise block a successful confirmation vote.

The key question now is whether Democrats have the juice to force Republicans to once again cast symbolic “no” votes for a Supreme Court nominee, and let it go at that, or whether Republican senators will toe the (likely) all-out obstructionist line of Tea Party acolytes like Ted Cruz and Mike Lee—both of whom, not coincidentally, sit on the Senate Judiciary Committee, poised to stonewall any Obama pick for the high court, never mind how impeccable her credentials or provocation-free her record.

Of course, Senate Democrats have already responded to ongoing, just-say-no Republican obstruction by changing the Senate rules to bar filibusters for lower-court judicial (and executive) nominees. As long as they retain their Senate majority, Democrats have the option of extending the no-filibuster rule to Supreme Court nominees, as well. And, of course, whenever the next Supreme Court vacancy arises, the president can once again select a straight-arrow moderate and hope for the best.

Critical to both of these strategies is the fact that neither requires Democratic leaders to resort to mass grassroots mobilization—i.e., galvanizing Democratic voters while engendering solid approval among independents. But without meaningful popular enthusiasm, Democratic leaders are stuck with a perpetually weak hand. Rank-and-file Democrats have little incentive to wage a high-priority fight; Republicans have less incentive to accommodate and move on. Of course, frustrated progressive activists often attribute Democratic leaders’ aversion to grassroots confrontation to a lack of spine. In fact, however, the reasons run much deeper.

Most Democratic voters simply don’t see the courts as relevant to the—mainly economic—issues they care about most. No wonder many Senate Democrats consider court-related battles as a distraction, or, in red states, a political liability. Professor Chemerinsky’s enthusiasm for a Supreme Court fight this fall is probably not shared by Senator Mark Pryor, fighting for his political life in Arkansas—nor by Mary Landrieu in Louisiana, Kay Hagan in North Carolina, and Mark Begich in Alaska—and for good reason. The social conservative voters prevalent in their states—some of whose votes Democratic candidates must get in order to win elections—have long seen the federal judiciary as critical to high-priority social issues like marriage, prayer, and abortion. To be sure, Democratic culture warriors care deeply about the same issues that animate their social conservative adversaries, but their sense of urgency about the courts has only spottily trickled down to the grassroots.

In contrast, Republicans savor high-decibel political fights over the courts. In the short term, they see them as a way of firing up their base and burnishing their brand as defenders of the Constitution and the rule of law. And, within the Republican coalition, social conservatives are not alone in prioritizing control of the judiciary for achieving their long-term agendas. Business conservatives also understand how important sympathetic judges have been to their success in neutralizing statutory protections for consumers, workers, retirees, and investors. Finally, libertarians, an increasingly important part of the Republican coalition, view the courts as central to achieving their roll-back-the-New-Deal-and-Great-Society agenda—one that may inspire rhetorical flourishes and symbolic votes in the House, but, as a practical matter, is a virtual dead letter in the elected branches of government.

In sum, Republicans, at all levels, get that the courts matter a lot, and Democrats mostly do not. This asymmetry yields a chronic, structural disadvantage that limits the options available for Democratic and progressive leaders, when battles flare in the ongoing war over the courts. To regain traction, Democrats and progressives must transform the politics around the courts, building upon efforts already begun by some progressive leaders.

First, Democrats and progressives must get across to their constituents that judges are, in fact, a serious threat to the democratic rights and pocketbook interests that most Democratic voters—indeed, most voters—care about a great deal. Progressive legislators have already opened this front.

Since June 2008, Senate Judiciary Committee Chair Patrick Leahy has held recurrent hearings designed “to shine a light on how the Supreme Court’s decisions affect Americans’ everyday lives,” showcasing victims of decisions detrimental to employment safeguards, retirement security, consumer protection, health care coverage, and securities fraud protections. And in the wake of the Court’s recent decision in McCutcheon v. F.E.C., which struck down long-established limits on aggregate campaign contributions by wealthy donors, Leahy and Senate Rules Committee Chair Chuck Schumer announced joint efforts to spotlight how “five justices once again have decided to rule on the side of moneyed interests,” beginning with former Justice John Paul Stevens’s high-profile testimony last week before the Senate Rules Committee. Most visibly, Senator Elizabeth Warren, leader of the Democrats’ populist wing, has begun to tie the courts to her larger economic message, warning progressives about “the corporate capture of the federal courts.” These are steps in the right direction, but thus far, these limited probes that have barely registered with the media or the public.

Second, Democrats and progressives need to lay bare the future real-world consequences if right-leaning judges expand current efforts to dismantle 20th and 21st century economic reforms. In particular, attention should be drawn to libertarians’ truly radical constitutional vision for canceling congressional authority to enact, and limiting the President’s discretion to implement, federal regulatory and safety-net guarantees—of which the current round of challenges to the Affordable Care Act are but a leading edge. Libertarian legal scholars have long nurtured revisionist constitutional theories that could, for example, cripple Congress’s capacity to use federal aid to incentivize states and localities to assist persons with disabilities, or tighten pollution controls in line with national criteria, or meet Medicaid requirements for providing access to quality health care for low-income citizens or nursing home residents. Once pie-in-the-sky academic musings, these theories were echoed in the opinion of the four conservative justices who dissented from Chief Justice Roberts’s 2012 decision to leave the ACA largely intact.

Finally, Democratic leaders must recognize that ordinary people care—quite properly—about the Constitution and expect judges to follow the law, not just deliver agreeable results. Democrats’ traditional rhetorical toolkit rarely, if ever, features talking points on how the Constitution or otherwise relevant law supports their goals, instead focusing on the material pay-off of decisions or doctrines. Thereby, Democrats cede the legal high ground to their Republican adversaries. For this chronic omission, Senator Leahy has sketched the appropriate remedy. He typically criticizes Roberts Court decisions, not simply because of their harmful effects, but because they flout the law, “oftentimes turning laws upside down, and making them protections for big business rather than ordinary citizens.” And President Obama, in his second inaugural address, anchored his vigorous defense of active progressive governance in “the enduring strength of the Constitution,” whose Framers “did not fight to replace the tyranny of a king with the privileges of a few.” These baby steps need scaling up. And leading scholars like Akhil Amar, Jack Balkin, James Ryan, Lawrence Lessig, and Garrett Epps lay a solid foundation for doing so. Indeed, their work demonstrates that the Constitution’s text and history often point in progressive—not conservative—directions.

To go toe-to-toe with Republicans and conservatives over the next Supreme Court vacancy, and the far stormier battles that can be expected as Republican as well as Democratic justices retire, Democrats and progressives must correct their self-inflicted disabilities, revise their playbook, and offer a persuasive vision rooted in the rule of law and the Constitution’s text and history.

Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.